As the historic International Court of Justice (ICJ) hearings at The Hague concluded on December 13, a precarious world awaits the court’s advisory on accountability and the application of international law to secure a safe future for the planet.
The climate justice hearings were unprecedented in many ways, other than the record number of states and organisations which testified before it. It was an appeal from the youth of this world, led by Vanuatu, Fiji, and other Pacific Island nations, who will inherit a planet devastated by the ravages of “development” and excessive reliance on fossil fuels.
Battered by extreme events, the Pacific Island nation of Vanuatu led the charge for an advisory opinion from the ICJ which culminated in the hearings held at the Peace Palace from December 2. Ninety-six states and 11 international organisations presented oral statements before 15 judges at the ICJ.
Fifteen-year-old Vepaia from Vanuatu, who has experienced many cyclones, said, “I wish every country could just switch to renewable energy and just stop using fossil fuels. That would definitely make a better world for our children.” Her fight for climate justice and gender equality was taken to the ICJ with training from the Save the Children’s NextGen programme.
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The request for an advisory opinion was the focus of a global campaign initiated five years ago in a classroom in Emalus, Vanuatu. Young people dared to take on the impossible by bringing the world’s biggest problem to the world’s highest court, according to Vishal Prasad, director of the Pacific Island Students Fighting Climate Change (PISFCC), which worked with a core group of UN member states to mobilise a consensus resolution being adopted by the UN General Assembly on March 29, 2023, which in turn, led to the seeking of the advisory from ICJ.
In his oral testimony to the ICJ, Prasad urged the court to apply international law to the conduct responsible for climate change and appealed to the court to ensure that their collective future was not further endangered. He also said that the “campaign for an ICJ Advisory Opinion was born out of frustration with the inability of the COP processes to deliver urgent climate action.”
The chronic fatigue and lack of progress with the annual UN climate summits was exemplified at Baku which was perhaps the most disillusioning one in terms of a lack of political will, finance and targets. The October 2024 report from the UN environmental programme, said that global greenhouse gas emissions continued to increase in 2023. The G20 countries (excluding the African Union) were responsible for 77% of all emissions; in comparison, the 47 least developed countries combined were responsible for just 3%.
Apart from oral testimonies, the ICJ will sift through 91 written statements and 62 additional written comments to address key questions:
(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations; (b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
The states and various organisations presented incontrovertible scientific evidence to the ICJ, citing reports from the Intergovernmental Panel on Climate Change (IPCC) that outline what is necessary to achieve the Paris Agreement’s goal of limiting the average temperature increase to 1.5°C above pre-industrial levels.
The Commission of Small Island States on Climate Change and International Law (COSIS) and the International Union for Conservation of Nature (IUCN) demanded a transition away from fossil fuels and that global greenhouse gas (GHG) emissions be reduced by 43% below 2019 levels by 2030 and by 84% by 2050.
The Asian region is the most disaster-prone globally, experiencing frequent extreme events like typhoons and earthquakes. In the past 50 years, Asia has seen 3,612 disasters causing nearly a million deaths and $1.4 trillion in losses, nearly half of the world’s total. While the Indian oral testimony was naturally focused on loss and damage, it resonated with the developed countries’ notion of climate justice by asking for no new liabilities to be introduced other than the UN climate frameworks.
While Vanuatu and over 90 states argued for a wider application of international law including those on human rights for climate justice, in its oral submission, India stuck to its stand of holding developing countries responsible for climate change and called on the ICJ to refrain from ‘devising’ new or additional obligations beyond the existing climate change regime.
India’s contribution to climate change is less than 4% historically and its per capita GHG emissions are less than half of the global average. However, in its 65-page written submission, India took a startling position that “environmental pollution and climate change must not be conflated. While there is an overlap in some areas, the science is clear on what the differences are in the two phenomena both at temporal and spatial scales. The best available science has not qualified ‘heat’ and ‘carbon dioxide’ as environment pollutants. None of the reports of the IPCC, which have presented their findings on the impacts of climate change, has termed the impacts of CO2 on various sectors as environmental pollution.”
India contends that, while addressing the questions, the court, in the exercise of its judicial function, may consider that climate change issues cannot be treated as environmental pollution. Therefore, climate change cannot be dealt like the transboundary harm on environment, but rather governed by a distinct regime established under the UNFCCC and its two implementing instruments.
India opposed the application of international law to climate actions, arguing that the adverse effects of climate change do not fit the typical scenario of state responsibility. To support its assertion, India cited its case against Pakistan, noting that “the typical scenario covered here are disputes between States on the basis of an action clearly identifiable in terms of place and time, for instance damage to a ship (e.g. Corfu Channel case) and violation of consular rights (e.g. Kulbhushan Jadhav, ICJ 2019) and violation of sovereignty and territorial integrity (e.g. Nicaragua 1986)”.
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India squarely attributed the responsibility for climate change to the specific actions of other states over a long period. It emphasised that the primary responsibility for fulfilling obligations under the existing climate change treaty regime lies with developed countries. India maintained that, despite “not being historically responsible for climate change,” it has made ambitious voluntary commitments to climate action and implemented them. However, an independent analysis by Climate Action Tracker has found that India’s climate policy, targets, and actions are highly insufficient.
The main argument presented by countries severely impacted by extreme events is that existing legal obligations under the Charter of the United Nations, the Universal Declaration of Human Rights, and other laws are applicable. Ralph Regenvanu, Vanuatu’s special envoy for climate, emphasised in his opening ceremony speech that countries already have legal obligations under international law that extend beyond the frameworks of the UNFCCC and the Paris Agreement.
Regenvanu stated, “We will not be asking the Court to create new laws, but to affirm that existing international laws, which govern State responsibility in nearly every other context, must also apply to the climate crisis.”
However, this demand to expand legal and accountability frameworks has been met with contention, particularly from countries like the USA, Saudi Arabia, and the UK. These nations, along with the Nordic countries – Denmark, Sweden, Finland, Iceland, and Norway – have expressed faith in the UN climate regime, specifically the Paris Agreement. Some countries, including the USA, are hesitant to apply human rights to climate justice. This divergence in opinions highlights the complexities and challenges in addressing climate change through international law.
However, just as in the case of the advisory of the ICJ in the Chagos Islands case in 2019, after which the UK in October 2024 decided to return the islands back to Mauritius, Vanuatu and other countries hope that the powerful oral and written testimonies will lead to an advisory or a blueprint that places accountability, justice, human rights and reparation at the heart of the climate debate.
Meena Menon is a visiting fellow at the Leeds Arts and Humanities Research Institute, University of Leeds, UK and a journalist and author.
